AA v LA

Case [2017] NZHC 646 5 April 2017

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NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

THIS JUDGMENT MAY BE CITED AND REPORTED AS VIVIAN V KELLERMAN IN ACCORDANCE WITH PARAGRAPH [41] OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-663 [2017] NZHC 646

UNDER
Section 39 of the Property (Relationships)

Act 1976

IN THE MATTER OF

an appeal against the judgment of the
Family Court

BETWEEN

AA
First Appellant

AND

LA

First Respondent

CIV-2016-409-670

UNDER Section 39 of the Property (Relationships) Act 1976

IN THE MATTER OF an appeal against the judgment of the
Family Court

BETWEEN LA
Second Appellant

AND AA
Second Respondent

Hearing:
5 April 2017

(On the papers)

Appearances:

S Forrester for the First Appellant/Second Respondent

P Tucker for the Second Appellant/First Respondent

VIVIAN V KELLERMAN [2017] NZHC 646 [6 April 2017]

Judgment: 5 April 2017

JUDGMENT OF MANDER J

Background

[1] The husband and the wife both appealed a decision of Judge Moran in the Family Court making orders relating to the division of their property following their separation.1 I released my judgment on 20 December.2

[2] As to costs, I stated:

[148] With the exception of one discrete point I have identified relating to the replacement carpet, the husband has been unsuccessful on his appeal. Notwithstanding the wife’s lack of success on the points raised on her cross- appeal, I consider that on balance the husband to be the unsuccessful party on the appeal. My preliminary view is that having regard to the respective merits of the parties’ arguments he should be required to pay 75 per cent of the wife’s costs on a 2B basis. I provide that indication only as a guide to my present thinking on costs, reflecting as it does the relative success of the parties and in particular the wife’s success in having the Family Court’s decision substantially upheld. Should counsel wish to be heard on the issue, they should exchange and file memoranda in the usual way (not more than three pages).

[3] At the time I made this observation I was unaware the husband had been granted legal aid. The wife seeks a formal order that the husband pay 75 per cent of her costs, the husband seeks an order that costs lie where they fall.

Submissions

The husband

[4] The husband relies on s 45 of the Legal Services Act 2011 (the Act), which reads:

1 A v A [2016] NZFC 5749.
2 Vivian v Kellerman [2016] NZHC 3163.

45 Liability of aided person for costs

(1) If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AA v LA

Details

AGLC: AA v LA [2017] NZHC 646
Case: [2017] NZHC 646
Decision Date: 5 April 2017

CaseChat Overview and Summary

The parties, AA and LA, appealed against a Family Court decision relating to the division of their property following their separation. The husband appealed against the orders made by the Family Court, and the wife cross-appealed certain aspects of the decision. The court was required to decide whether the husband, who had been granted legal aid, was immune from an order for costs, whether the wife had complied with the notice requirements under the Legal Services Act 2011, and whether there were exceptional circumstances that justified an order for costs despite the husband's legal aid status.

The court found that the husband was legally aided for the whole of the appeal proceedings and that the notice requirements under s 24 of the Act were satisfied as the wife was notified orally and in writing on the earliest opportunity. The court further found that there were no exceptional circumstances that would justify an order for costs against the husband. While the husband's appeal had some unsuccessful points, there were genuine issues raised on appeal that were not unreasonable to pursue. Additionally, the husband's rejection of Calderbank offers was not found to be unreasonable as both parties were optimistic about their chances of success on appeal.

The court concluded that the husband's legal aid immunity under s 45 of the Act applied, and therefore, costs should lie where they fall. The judgment may be cited and reported as Vivian v Kellerman.

Orders